Donroy Ghost Bear v. United States , 777 F.3d 1008 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1090
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Donroy Ghost Bear
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: December 10, 2014
Filed: February 5, 2015
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Before BYE, SMITH, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Donroy Ghost Bear moved in the district court to vacate or correct his sentence
under 28 U.S.C. § 2255, asserting that his trial and appellate attorney rendered
ineffective assistance because the attorney, among other things, failed to inform
Ghost Bear that he had been subject to disciplinary sanctions by the State Bar of
Texas. The district court1 denied the motion but granted a certificate of appealability
on this question. We affirm the judgment.2
I. Background
Ghost Bear was charged in a multi-defendant indictment with three counts of
conspiring to distribute and conspiring to possess with intent to distribute cocaine,
21 U.S.C. §§ 846, 841(a)(1). He originally was appointed counsel under the Criminal
Justice Act but later retained new counsel to represent him. Apparently still
unsatisfied, Ghost Bear successfully moved the court to permit a third attorney,
Steven Jay Rozan, to represent him and a co-defendant. On November 18, 2008,
represented by Rozan, Ghost Bear pleaded guilty to one count of conspiring to
distribute cocaine. On February 18, 2009, he was sentenced to 151 months’
imprisonment.
Ghost Bear appealed, still represented by Rozan, and argued that the district
court lacked jurisdiction to hear his case and should have reduced his sentence for
acceptance of responsibility. We upheld Ghost Bear’s conviction and sentence,
United States v. Ghost Bear, 387 F. App’x 659 (8th Cir. 2010), and the Supreme
Court denied his petition for a writ of certiorari, Bear v. United States, 131 S. Ct.
1547 (2011).
Ghost Bear then filed a pro se motion to vacate his conviction under 28 U.S.C.
§ 2255. He asserted numerous grounds of ineffective assistance of counsel at the trial
and appellate levels. Relevant to this appeal, Ghost Bear argued that Rozan was
1
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, adopting the report and recommendation of the Honorable Veronica
L. Duffy, United States Magistrate Judge for the District of South Dakota.
2
We have jurisdiction over this appeal under 28 U.S.C. §§ 1291 and 2253(a).
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ineffective for not disclosing various disciplinary sanctions imposed on him by the
State Bar of Texas, one of the states where Rozan was licensed. In 2004 and 2005,
Rozan was privately reprimanded; in October 2007, he was publicly reprimanded; and
in September 2009, while Rozan was representing Ghost Bear on appeal, he was
suspended from practice in Texas for five years, effective January 1, 2010. With the
suspension came an order from the Texas Supreme Court that Rozan, by the date of
his suspension, had to provide written notice of his suspension to every client and to
every justice, judge, magistrate judge, administrative judge, or other court officer in
every court in which Rozan practiced. According to Ghost Bear, Rozan “abandoned”
him and never revealed the suspension, in violation of the order from the Texas
Supreme Court.
The magistrate judge, reviewing the case by consent, recommended denying
the § 2255 motion. The magistrate judge noted that Ghost Bear had retained Rozan
to represent him; the court had not “foisted” Rozan on him involuntarily. Thus, the
magistrate judge concluded, it was Ghost Bear’s responsibility to investigate the
disciplinary past of his attorney. Moreover, the magistrate judge continued, Rozan’s
2007 public reprimand did not require him to inform any future clients of the
reprimand. And because Ghost Bear had pleaded guilty ten months before Rozan was
suspended and ordered to inform his current clients of the suspension, the magistrate
judge explained, the required notification would have come well after the district
court had sentenced Ghost Bear. The magistrate judge concluded that, even if Rozan
should have disclosed any of the sanctions, Ghost Bear had not shown how he was
prejudiced by Rozan’s silence.
The district court adopted the report and recommendation and denied Ghost
Bear’s motion. Ghost Bear then moved for a certificate of appealability, which the
district court granted. We ordered a limited remand because the district court had not
stated the issue or issues on which the certificate had been granted. See 28 U.S.C.
§ 2253(c)(3). The district court then clarified the only issue certified for appeal:
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Whether petitioner’s Sixth Amendment right to the effective assistance
of counsel was denied when his attorney failed to notify Ghost Bear that
he was the subject of disciplinary actions by the State Bar of Texas,
including a public reprimand and later suspension.
Ghost Bear moved to expand the certificate to include additional claims of ineffective
assistance of counsel. We denied that motion.
II. Discussion
On appeal, Ghost Bear maintains that Rozan was ineffective for not disclosing
his disciplinary actions that occurred while he represented Ghost Bear. He also
argues, for the first time, that Rozan was ineffective for not disclosing his disciplinary
actions that occurred before he was retained. Ghost Bear insists he never would have
hired Rozan had he known about Rozan’s disciplinary history or would have fired
him when he learned of it.3
This court reviews de novo the denial of a motion under § 2255. United States
v. Brewer, 766 F.3d 884, 887 (8th Cir. 2014). When reviewing a claim of ineffective
assistance of counsel, we follow the two-part test from Strickland v. Washington, 466
U.S. 668 (1984): First, Ghost Bear must show that his attorney’s performance was
objectively unreasonable or, in other words, fell below professional norms. Ghost
Bear then must demonstrate that because of his attorney’s deficient performance, he
was prejudiced; i.e., there is a reasonable probability that but for counsel’s errors the
result of the earlier proceedings would have been different. See Roundtree v. United
States, 751 F.3d 923, 925 (8th Cir. 2014). Rather than point to evidence suggesting
3
Ghost Bear discusses two other bases for his claim of ineffective assistance
and asserts that the district court improperly denied him an evidentiary hearing. But
those issues were not specified in the certificate of appealability, so they are not
before us. See Williams v. United States, 452 F.3d 1009, 1014 (8th Cir. 2006).
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that Rozan’s performance met either of the Strickland elements, however, Ghost Bear
argues for a per se rule of ineffectiveness: Because Rozan was suspended from the
practice of law, the rule provides, his representation was ineffective.
We reject Ghost Bear’s argument. Along with several other circuits, we
expressly have declined to adopt a per se rule of ineffective assistance when “the
defendant was represented by a trained and qualified attorney, albeit one with
licensing problems.” United States v. Watson, 479 F.3d 607, 611 (8th Cir. 2007);
see Cole v. United States, 162 F.3d 957, 958 (7th Cir. 1998) (rejecting per se rule of
ineffective assistance based on “deficiencies in lawyers’ bar membership,” including
disbarment and suspension from local bar); United States v. Maria-Martinez, 143
F.3d 914, 919 (5th Cir. 1998) (declining to apply a per se rule of ineffectiveness “to
cases of representation by improperly uncredentialed lawyers”); United States v.
Stevens, 978 F.2d 565, 567–68 (10th Cir. 1992) (holding that attorney who was
disbarred without notice from state bar was not per se ineffective); United States v.
Mouzin, 785 F.2d 682, 696–97 (9th Cir. 1986) (“[T]he fact that an attorney is
suspended or disbarred does not, without more, rise to the constitutional significance
of ineffective counsel under the Sixth Amendment.”).
Moreover, the per se rule for which Ghost Bear advocates would not apply to
the district court proceedings in his case. Rozan did not have “licensing problems”
until September 2009, during Ghost Bear’s appellate proceedings, when Rozan was
suspended in Texas. Ghost Bear is correct that, during the appeal, Rozan did not
reveal his suspension to this court until April 2, 2010, in violation of the Texas order
to inform courts and clients by January 1, 2010. And there is no evidence that he ever
told Ghost Bear about the suspension. But even so, the relevant circumstances here
are the same as those under which we declined to adopt a per se rule in Watson. And
as in Watson, there is no allegation that Rozan was not “a trained and qualified
attorney,” nor is there anything inherent about that suspension that suggests Rozan
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was unable to represent Ghost Bear effectively in this court. See Watson, 479 F.3d
at 611.
Ghost Bear also suggests we implement a per se rule based on Rozan’s past
violations. According to Ghost Bear, Rozan’s history of disciplinary issues creates
an inference that he rendered ineffective representation during the proceedings in the
district court. But no circuit court has adopted such a per se rule. The only
circumstances we found in which a circuit court has adopted a pro se rule of
ineffective assistance is when an attorney never was licensed to practice law in any
state. See United States v. Mitchell, 216 F.3d 1126, 1132 (D.C. Cir. 2000) (declining
to extend per se rule of ineffective assistance outside of cases “in which a defendant
is represented by a person never properly admitted to any bar”); Solina v. United
States, 709 F.2d 160, 162, 168 (2d Cir. 1983) (applying per se rule to law school
graduate who failed to pass bar examination and “was never admitted to practice law
in any state”). Ghost Bear has given us no reason to be the first court to adopt his
per se rule. We instead conclude that when an attorney was subject to past
professional discipline but, in all respects, remained an attorney, it is inappropriate
to infer that the attorney was per se ineffective.4
Last, Ghost Bear says that the district court should have researched Rozan’s
past before allowing him to represent Ghost Bear. Ghost Bear cites no authority for
this proposition and for good reason: No rule requires such a sweeping review of
counsel chosen by a defendant. Ghost Bear may have a better argument if Rozan had
been appointed by the court; in fact, Ghost Bear hired Rozan as his third attorney
months after Ghost Bear’s initial appearance. Even if the district court had
4
We also note the practical difficulties of applying the per se rule Ghost Bear
proposes. An attorney may face reprimand, discipline, or sanctions based on a wide
range of improper or unethical conduct, resulting in equally wide-ranging
consequences. Given the varying circumstances that may lead to disciplinary action,
we question whether the rule Ghost Bear advocates would be a “per se” rule at all.
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researched Rozan’s past, it would have found little reason to disqualify him: At the
time of Rozan’s July 2007 retainment, he had been subject to only two private
reprimands by the State Bar of Texas. It was not until October 2007 that he faced his
first public reprimand, but he was not required to inform future clients about that
action. The first disciplinary action that required disclosure to clients was his
suspension in September 2009, several months after Ghost Bear’s district court
proceedings had concluded.5
III. Conclusion
For the reasons discussed above, we affirm the judgment of the district court
denying Ghost Bear’s motion to vacate his sentence.
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5
Ghost Bear also says, without argument or elaboration, that we “should
reconsider and grant the motion to expand the certificate of appealability.”
We “carefully” exercise our discretion to expand a certificate, Noe v. United States,
601 F.3d 784, 792 (8th Cir. 2010), and we see no reason to do so here.
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